Timely notification to our consular officers of the arrest of an American in Mexico and subsequent early access of the arrestee continue to be major problems, which we have discussed repeatedly with officials of the Mexican Government at the highest levels. We have stressed in these discussions the importance the United States Government places on obtaining early notification of an arrest and subsequent prompt access to the detainee in accordance with the Vienna Convention on Consular Relations to which both of our countries are signatories. While we have succeeded in convincing the Mexican Federal Government of our position, practical results on the local level remain spotty and uneven. During the last eighteen months, there were some 269 cases where we did not consider notification of an arrest by police authorities as adequate.

In many cases the initial information on the arrest case came from outside sources such as friends or relatives rather than from local authorities. Once notification has been received, however, the gaining of consular access to the arrested American is usually no longer a problem. Conditions of communication and or transportation, however, can be an obstacle, particularly in the many cases where the arrest takes place several hundred miles from the nearest consular office. In these instances initial contact with the arrested citizen is made by telephone and a consular officer visits as soon thereafter as practical.

During the period covered by this report a new Mexican administration has assumed office and we have discussed the problem with newly installed officials. President Lopez Portillo is, of course, aware of the problem and, as you know, alluded to it in his address to the House of Representatives during his recent State Visit to Washington

123 Cong. Rec. H2056 (daily ed. Mar. 14, 1977).

On July 18, 1977, Senator John Sparkman, Chairman of the Senate Committee on Foreign Relations, received unanimous consent to have printed in the Congressional Record a letter dated July 2, 1977, from Acting Secretary of State Warren Christopher reporting, pursuant to section 408 (b) (2) of the International Security Assistance and Arms Export Control Act of 1976, on the progress since Secretary Vance's letter of March 4, 1977. Portions of Acting Secretary Christopher's letter follow:

*

There have been significant improvements in several respects affecting American prisoners in Mexico since the Secretary's previous report. These improvements arise from the responsiveness of the Government of Mexico under President Lopez Portillo on this issue, and particularly from the energetic manner in which the Attorney General of Mexico has tackled those aspects of the problem which lie within his jurisdiction. I am also pleased to report that notification and access to prisoners has noticeably improved

in most parts of Mexico, especially within our Embassy's consular district, where prompt notification was formerly the exception rather than the rule.

Claims of physical abuse at the time of arrest have decreased somewhat. During the period covered by this report (i.e. January 15 through May 15, 1977) there were 550 arrests involving Americans in Mexico. Out of that number there were 42 cases involving alleged physical abuse at the time of arrest. Of that number there were only nine cases where the abuse was substantiated and another 20 cases where the evidence was not sufficient to reach a clear conclusion. In 13 cases the allegation of physical abuse was not substantiated. The Mexican Attorney General is now taking prompt corrective actions when cases of substantiated abuse are brought to his attention. This represents substantial improvement over the past. There have similarly been fewer allegations of physical abuse within the prisons. In the Federal District, the prison authorities themselves now appear more willing to investigate such abuses and, if substantiated, take punitive actions. The problem of "extortion" in the prisons, in the form of payments paid to prison personnel or inmate bosses for both privileges and necessities of life, remains an unfortunate feature of prison life in most parts of Mexico. Within its consular district, however, the Embassy has received greater cooperation from prison authorities in arranging for medical treatment for prisoners. Nonetheless, inadequate medical and dental care continue to be serious problems. Another significant development, having a direct bearing on the number of future United States citizens detained in Mexico, should be noted. This is the Mexican Attorney General's decision not to prosecute persons who are clearly not traffickers and who are apprehended with small amounts of marijuana or other prohibited substances. Since this policy went into effect in late March, some 50 Americans arrested with 100 grams or less of marijuana, or an amount not exceeding 3 grams of other drugs, have been deported or American consular officers have assisted in arranging their departure from Mexico. The Mexican Attorney General is also surveying cases of Americans in the same category whose trial is in progress, and those who have received convictions, to determine whether ameliorative action might be possible.

*

Although it is evident that our vigorous efforts to improve notification and consular officers' access to American prisoners are slowly eliciting the cooperation of the Mexican authorities, it is equally evident that there is much room for progress in this area. Perhaps more difficult to remedy is the single most serious problem for an American arrested in Mexico, i.e., his inability to find competent and efficient legal representation at a reasonable cost. This problem exists both for those who must rely on public defenders, and those who are able to pay large legal fees for legal representation.

As the Secretary indicated to you in his last report, we are in a continuing dialogue with the new Mexican administration on this major problem in our relations. We now see that dialogue becoming productive. We have every expectation that our discussion of the

plight of U.S. citizens detained in Mexico will result in continued improvement.

123 Cong. Rec. S12189 (daily ed. July 18, 1977).

Senator Sparkman also introduced into the Congressional Record a letter dated July 12, 1977, addressed to the President from Senator Clifford P. Case, the Ranking Minority Member of the Committee on Foreign Relations, and himself:

The Committee on Foreign Relations recently concluded two days of hearings on the Treaties with Mexico and Canada on the Execution of Penal Sentences. . . .

During the course of the hearings, the Committee was disturbed by the reports it received from former prisoners in Mexico and the families of prisoners regarding the abuse of Americans imprisoned in Mexican institutions. These witnesses told of torture, extortion and denial of food and medical care necessary for survival. Complaints were also received about the inability of understaffed consular offices to assist adequately Americans in Mexico.

The Committee appreciates the fact that the Government of Mexico has initiated efforts to improve the treatment of prisoners and to review the cases of Americans arrested for the possession of small amounts of drugs. These steps are laudable, but the Committee feels that the United States can take additional action to protect its citizens contending with the legal systems of other nations, including Mexico, Bolivia and other countries where large numbers of Americans are held on criminal charges having nothing to do with politics. The most urgent representations should be made to these nations to express the strong interest of the United States in the protection. of the rights of the accused regardless of their nationality. The Government of Mexico has acted to alleviate the situation of prisoners in the area of Mexico City, but, unfortunately, reports to the Committee indicate that the situation in the outlying areas of Mexico has not changed significantly.

Prompt, effective assistance to U.S. citizens by consular offices is important to those accused of crimes in unfamiliar legal systems. Immediate consideration should be given to the work load of consular officers in Mexico and to the assignment of additional experienced officers to deal with the problems of the large numbers of Americans visiting that country. The Committee also feels that this review should consider the situation in other nations where large numbers of Americans are incarcerated.

Information received by the Committee indicates that ten or twelve qualified, experienced officers are needed in Mexico. These additional officers would allow better service to the prisoners and others, especially those facing difficulties in areas not served by a consulate. Although smaller numbers of additional consular officers would be needed in other nations such as Bolivia, there is no less an urgent demand for personnel.

On May 31, 1977, the U.S. Embassy in San Salvador submitted a note to the Ministry of Foreign Relations of El Salvador concerning the recent detention of two religious missionaries who are U.S. citizens. The Embassy asked why the Government of El Salvador had not complied with rights guaranteed to these citizens and to the U.S. Government under article 36 of the Vienna Convention on Consular Relations done on April 24, 1963 (TIAS 6820, 21 UST 77; 596 UNTS 261; entered into force for the United States December 24, 1969):

and

Messrs. were detained by officers of the National Police in Santa Ana on May 19 for having photographed the police station/jail of that city. They were transported to San Salvador the following day where it was formally explained to them that the police station was considered a national security installation and, as such, could not be photographed during the state of siege. They were then released after about 32 hours of detention. At no time were they informed of their rights to contact the United States Consulate under article 36(b) of the Vienna Convention on Consular Relations of 1963.

The Embassy has the honor to refer to a note in a similar situation addressed to His Excellency the Minister of Foreign Relations on April 11 of this year regarding Father . . . and Mr. .., also United States citizens, protesting the lack of notification of right of consular access under the Vienna Convention in these cases.

The Embassy requests His Excellency to elaborate expeditiously upon the following points: Why the [first mentioned] two United States citizens were not informed of their right to contact the Consulate as provided under article 36 of the Vienna Convention on Consular Relations of 1963; and why the Consulate was not officially informed of the detention of two United States citizens until approximately 28 hours afterwards.

The Embassy will also greatly appreciate it if His Excellency will clarify for the Embassy what constitutes a national security installation and provide a listing of all other activities possibly affecting foreign nationals in El Salvador which are prohibited under the state of siege to the end that the Embassy may fully inform its nationals to help prevent future incidents.

Dept. of State File No. P77 0095-2225.

On July 28, 1977, the Ministry of Foreign Relations responded to the U.S. note with an assurance that Salvadorian personnel are being instructed to comply strictly with the 1963 Vienna Convention on Consular Relations with respect to consular access to and treatment of detained persons. There was no clarification of what constitutes a national security installation or other activities prohibited under the state of siege.

Art. 36 of the 1963 Vienna Convention on Consular Relations reads as follows:

Article 36

Communication and contact with nationals of the sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sendiing State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

For further information concerning this matter and other human rights issues of importance to U.S. relations with El Salvador, see the statement of Richard Arellano, Deputy Assistant Secretary for Inter-American Affairs, before the Subcommittee on International Organizations of the Committee on International Relations of the House of Representatives on July 29, 1977.

On August 25, 1977, the U.S. Court of Appeals for the Ninth Circuit held in DuPree v. United States, 559 F.2d 1151 (1977), that the consul of Mexico at San Diego, California, did not have standing to intervene in behalf of three named Mexican nationals who alleged that they were being held in prison and being paid $1 for each day of detention, including days spent in court as alien material witnesses, while they were statutorily entitled to $20 for each day of court attendance. The Mexican consul sought to intervene pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. The imprisoned Mexican nationals brought suit for themselves and others similarly circumstanced seeking $20 per day court fees plus reimbursement of their attorney's fees under 28 U.S.C. 1821.

The Circuit Court, Joseph T. Sneed, affirmed the district court's dismissal of the plaintiff's complaint for want of prosecution and denied the consul's motion for intervention on the grounds that the Consular Convention between the United States and Mexico signed on August 12, 1942 (TS 985; 57 Stat. 800; 9 Bevans 1076; 125 UNTS 301; entered into force on July 1, 1943), "gave the consul only a general